Lesage v. Largey Lumber Co.

• Decision Date: 09 April 1935
• Docket Number: 7361.
• Citation: 43 P.2d 896,99 Mont. 372
• Parties: LESAGE v. LARGEY LUMBER CO.
• Court: Montana Supreme Court

43 P.2d 896

99 Mont. 372

LESAGE v. LARGEY LUMBER CO.

No. 7361.

Supreme Court of Montana

April 9, 1935

Rehearing Denied May 3, 1935.

Appeal from District Court, Silver Bow County, Second District; T E. Downey, Judge.

Suit by Walter Lesage, Jr., by Walter Lesage, his guardian ad litem against the Largey Lumber Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

John K Claxton, of Butte, for appellant.

N. A. Rotering, of Butte, for respondent.

ANDERSON Justice.

Plaintiff, a minor child of the age of eight years and nine months at the time of the accident out of which this action arose, brought this suit through his guardian ad litem to recover for personal injuries sustained as the result of an automobile colliding with him on Colorado street, between Gold and Platinum streets, in a residential section of the city of Butte.

In his complaint plaintiff alleged the appointment of his father as guardian, the corporate existence of the defendant, and that on September 23, 1932, within the city of Butte, he sustained certain personal injuries, due to the negligent operation of an automobile, the property of the defendant, by one of its employees. The particular acts of negligence alleged were: (a) Failing to have or keep the automobile under control; (b) failure to keep any lookout for others, especially the plaintiff, upon the street; (d) that the driver had defective eyesight; (c, e, and f) by driving the automobile in violation of certain ordinances of the city; and (g) that the driver saw the plaintiff but failed to give any warning by sounding the horn or other means, and ran the automobile against the plaintiff. The complaint contains allegations setting forth in detail the nature and extent of the injuries sustained, and the resulting damages.

A motion to strike was made to eliminate certain specific allegations of the complaint, which was denied by the trial court. We will later notice these somewhat more in detail. After a demurrer to the complaint was overruled, defendant answered denying all of the allegations of negligence and injury, and alleging affirmatively the defense of contributory negligence. The affirmative allegations were denied by reply. The cause was tried by the court sitting with a jury, and resulted in a verdict for $3,500. Judgment was entered in accordance with this verdict. A motion for new trial was made, heard, and denied. The appeal is from the judgment.

In view of the fact that it will be necessary to discuss the evidence and other proceedings occurring at the trial, we will not extend the statement of facts at this point, but refer to these various matters in connection with the discussion later in the opinion.

Defendant assigns error upon the ruling of the trial court in denying its motion to strike. A bill of exception was settled in due season. It does not contain copies of the complaint nor motion to strike, but in lieu thereof, at an appropriate place in the bill, it is stated parenthetically, "Here clerk will insert copy of complaint," and a like reference is made to the motion to strike and the court's order ruling thereon. Plaintiff contends that by reason of the failure of these documents to be copied into the bill of exceptions, defendant may not present this question on this appeal.

The propriety of the use of a skeleton bill of exceptions, and the exact method to be pursued in preparing a record on appeal where it has been used, has been a subject of debate among the members of the bar of this state for many years; and we therefore deem this an appropriate occasion to clarify, if possible, the practice on this point.

The last sentence of section 9388, Revised Codes 1921, relating to bills of exceptions, provides that "documents on file in the action or proceedings may be copied, or the substance thereof stated, or a reference thereto sufficient to identify them may be made when necessary to present the objection." Counsel for the plaintiff cites and relies upon the following statement uttered by this court in the case of Emerson v. McNair, 28 Mont. 578, 73 P. 121, 122: "The bill of exceptions in this case recites that the records and files in the action were offered and used on the hearing, but neither the complaint, summons, motion for cost bond, nor the proposed answer is incorporated therein." A careful reading of this opinion discloses that this court, although it alluded to many sections of our Code, did not refer to the last sentence of section 1152, Code Civ. Proc. of 1895, which is identical with the above-quoted sentence from section 9388. Other provisions of the section have been changed somewhat from time to time by amendment. The quoted sentence clearly indicates that in the preparation of a bill of exceptions, documents which are then on file with the clerk of court may be incorporated therein by reference thereto "sufficient to identify them." Where the practice authorized by this statute prevails, the document must be identified so that the transcribing officer can, unaided by memory, readily and with certainty determine from the description itself what document or paper is referred to without room for mistake. Alabama Railroad Co. v. Dobbs, 101 Ala. 219, 12 So. 770; Atchison & N. R. Co. v. Wagner, 19 Kan. 335; Shurtliff v. Extension Ditch Co., 14 Idaho, 416, 94 P. 574. The quotation from the McNair Case, supra, when read in the light of the rules of this court then in effect, did not refer to the preparation of the bill of exceptions, but rather to the preparation of the transcript.

At present, under rule VII of this court relative to the arrangement of the transcript, and subdivision d thereof, it is provided that papers shall not be repeated in the transcript but may be referred to by appropriate reference. Rule VII, as it was in force at the time of the McNair Case contained no such provision, and this court was there referring to the fact that it would not consider certain documents because they were not incorporated within the bill of exceptions verbatim on appeal. If rule VII had then contained the provision it does now, a reference would have been sufficient, and by reason of the change in the rules, the language of that decision is without application here.

In order that we may not be misunderstood, we hold that in the preparation of a bill of exceptions, documents need not be set forth verbatim; they may be incorporated by reference, provided they are identified so that the clerk can, unaided by memory, readily and with certainty determine from the identification itself what document or paper is referred to without room for mistake; but that in the preparation of a transcript on appeal, after the bill of exceptions is settled, documents so incorporated by reference in the bill of exceptions must be set forth at length in the record in lieu of the description incorporated in the bill of exceptions as settled, unless the document is elsewhere found in the transcript on appeal, in which event it may be incorporated by appropriate reference indicating where it may be found, or unless the exhibit is certified to this court in accordance with its rules.

The only defect here present is that the defendant did not in the compilation of the transcript on appeal make appropriate reference to the location of these documents in accordance with rule VII. However, we are not disposed in this instance to refuse to review the ruling of the trial court for this infraction of the rule, in view of the uncertainty prevailing in the practice heretofore.

Defendant sought, by its motion to strike, to eliminate allegations from the complaint in connection with the specific averments as to negligence, wherein it was alleged in effect that there was nothing to obstruct the view of its driver before he struck plaintiff, for a distance of two or three hundred feet. It is asserted that these are allegations amounting to the pleading of evidence. If the contention of counsel is correct, they should have been stricken, but the evidence to establish these allegations would be properly admissible under the allegations asserting that the driver failed to keep a lookout, and if this evidence under the alleged improper allegations was otherwise admissible, any error on the part of the trial court in denying the motion to strike them could not in any way harm the defendant.

It was also sought to strike the allegation "that the defendant's driver had defective eyesight." Defendant contends that the complaint does not disclose the causal connection between this act of negligence and the injury suffered, in accordance with the rule announced by this court in Grant v. Nihill, 64 Mont. 420, 210 P. 914. This, however, was one of the acts of negligence which, it is alleged, "caused the said automobile to run against the plaintiff." The connection between the allegations is not clear. However, under the rule of this court that "whatever is necessarily implied in or is reasonably to be inferred from an allegation is to be taken as directly averred" [Linney v. Chicago, Milwaukee, St. Paul & Pac. R. Co., 94 Mont. 229, 21 P.2d 1101, 1103] and cases cited), the allegation must be held not vulnerable to a motion to strike.

The following allegation was sought to be stricken: "And he is again feeling pains where he sustained the said injuries." This averment appears in the paragraph of the complaint containing the allegations as to the nature and extent of plaintiff's injuries. Immediately preceding that allegation and as a part of the same sentence separated by a comma only, appeared the following: "That because of said injuries plaintiff lost several days of school during the present month of September, 1933." The latter averment coupled with the...